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Court of AppealAllowedCivil Application E093 of 2022· [2022] KECA 1017 (KLR)

Ihura & another v Hagos Birikirti Tewoldernrehen De La Torre Ramirez Nelly Victoria (suing as the personal representative of the estate of Mendoza Lopaz Aquilina (Deceased))

Court of Appeal
23 September 2022
1,245 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed late filing of an appeal record, ruling that a lawyer's departure from a firm without handover shouldn't punish the client.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi (Asike-Makhandia, JA) on an unopposed motion dated 22nd April 2022 seeking extension of time to file and serve the applicants' record of appeal and memorandum of appeal from the judgment and decree of the High Court of Kenya at Nairobi (Sergon, J.) dated 10th July 2020 in HCCA No. 519 of 2018. The applicants explained that the impugned judgment was delivered without notice to them and in their absence; they learned of it only in October 2020 when served with a bill of costs. They filed a notice of appeal with leave of the trial court on 28th December 2020, requested proceedings by letter dated 14th April 2021, and collected the proceedings and certificate of delay in December 2021. The delay was attributed to the departure of their counsel from the law firm without proper handover to join the judiciary. The record of appeal was filed on 1st March 2022 and served on 2nd March 2022. The respondent filed no response and no submissions. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the court found the delay not inordinate, the reasons sufficiently explained, the appeal arguable, and no prejudice to the respondent since the record was already on file. The motion was allowed as prayed, with the record of appeal deemed duly filed and served within time. Costs of the motion were ordered to abide the outcome of the appeal.

Key legal issues

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01

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

The applicants satisfied the Leo Sila Mutiso principles: the delay was not inordinate, the reasons (including counsel leaving the firm without handover) were sufficiently explained, the appeal was arguable, and no prejudice would be suffered since the record was already filed and served.

Reasoning

The court applied the settled four-fold test from Leo Sila Mutiso. The uncontroverted explanation that judgment was delivered without notice to the applicants and that counsel left the firm without handover sufficed. The record of appeal had already been filed and served, so the respondent would suffer only minor inconvenience. The motion was unopposed, with no response or submissions filed by the respondent.

02

Mistake of counsel should not be visited on an innocent litigant

Holding

The departure of the applicants' counsel from the law firm without proper handover, leaving the file unattended, was a mistake of counsel that should not be visited upon the applicants.

Reasoning

Relying on Murai & 79 Others v Amos Wainain as submitted by the applicants, the court accepted that the file went unattended because counsel left to join the judiciary. This assertion was not countered or controverted by the respondent, who filed neither a response to the motion nor written submissions.

p. 3

Legal principles established

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  • The decision whether to extend time for appealing is discretionary, and the court considers the length of the delay, the reasons for it, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • The Court of Appeal has wide and unfettered discretion under Rule 4, to be exercised judiciously.

Court orders

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  1. 1.The applicants' motion dated 22nd April 2022 is allowed as prayed
  2. 2.Time for service of notice of appeal and letter bespeaking proceedings extended
  3. 3.Notice of appeal and letter bespeaking proceedings dated 14th April 2021 deemed duly served within time
  4. 4.Time for filing and service of record of appeal extended
  5. 5.Record of appeal filed on 1st March 2022 and served on 2nd March 2022 deemed filed and served within time
  6. 6.Costs of the motion to abide the outcome of the appeal

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 4

Cases cited (2)

  • Leo Sila Mutiso Vs. Rose Hellen Wangari Mwangi
    (1999) 2 EA 231; Civil Application No. Nai 251 of 1997

    Settled principles for extension of time: length of delay, reasons, chances of appeal succeeding, prejudice to respondent.

  • Murai & 79 Others Vs. Amos Wainain
    [1979] eKLR

    Mistake of counsel should not be visited on an innocent litigant.

On appeal from
High Court of Kenya at Nairobi
HCCA No. 519 of 2018
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 1(2) and Rule 4 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ihura & another v Hagos Birikirti Tewoldernrehen De La Torre Ramirez Nelly Victoria (suing as the personal representative of the estate of Mendoza Lopaz Aquilina (Deceased))", Case Analysis (2022). Civil Application E093 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1017/eng@2022-09-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.